If you want to rely on protection against slavish imitation, it is necessary that your own product has its own individual position in the relevant market. This means that the appearance of the product concerned should differ from that of different but similar products on the market. By using imitation slave protection, you can prevent third parties from creating a risk of confusion by slavishly imitating your product. Let`s say you`re a bicycle manufacturer and you`ve had patent protection for twenty years for the technical effect of disc-shaped bicycle wheels on the aerodynamics of a bicycle. To promote your wheels, you painted a spiral pattern on them. They immediately attracted attention on television, during the Tour de France.When the patent expired, everyone was allowed to produce closed wheels with the same technical advantages. However, thanks to the concept of slavish imitation, you may still be able to discourage your competitors from painting the spiral pattern on their wheels. After all, this model has no technical function and does not matter for the reliability of the wheel. As a result, your “spiral wheels” always have a protected position in the market. Note: Slavish imitation usually involves a combination of copied features and not just a feature. The more functions are copied, the greater the likelihood of confusion and the stronger your case. Slavish imitation can be combined with misleading communication or comparative advertising: both terms are clearly defined in the Dutch Civil Code; See the section on advertising rights on this site. In legal proceedings for slavish imitation of designs, copyright often plays a role in addition to aspects of design and sign law (Benelux designs and EU designs).
We know the criteria and guide you through this sometimes very difficult legal landscape. The use of slavish imitation cannot be extended to technologies for which patent law is appropriate and non-functional design is irrelevant. However, you need to be careful! The principle of slavish imitation is based entirely on Dutch case law. If your product is copied abroad, a court in that country may have a different opinion than a Dutch court. In addition, slavish imitation is not regulated by law. They must therefore convince the court on the basis of case law. This can sometimes make things difficult. In addition, free competition is a high priority in international trade and its restriction could be considered undesirable. So my advice is: always try to protect your intellectual property first with a defined right such as a patent or design right. If this is not feasible or if your protection has expired, you could potentially resort to slavish imitation.
What if one of your competitors copied your product? Even if there is no intellectual property right that protects your product, such copying may be considered illegal in certain circumstances. Such illegal copying is also known as slavish imitation. Slavish imitation is not an intellectual property right, but an illegal act under Dutch tort law. In principle, imitation is allowed. However, slavish imitation is considered illegal. Our intellectual property lawyers are experienced in actions based on slavish imitation. We advise and support you in possible procedures. In addition, we advise you on possible protective measures against slavish imitation. For example, you did not apply for a design right for your design or the term of protection expired and the copyright appeal would be unsuccessful because it was not original enough. In this case, are you rights free if someone else copies your product almost completely? What else can you do? Case law on slavish imitation can then offer a solution. Therefore, seek advice. In practice, things are not always black and white; Send us an email at info@flib.nl or contact us without obligation on +31 (0) 205 210 130.
Get tips on slavish imitation to judge the claim in terms of “fake” or “imitation.” Even if an opinion is negative, negotiating with your other party can be a good solution. For example, so that the product does not have to be immediately withdrawn from the market for a fee. This outcome may be better for both parties (the risks have been contained) than a conflict in interim measures proceedings. In some situations, no protection will be available. This could be because the invention is not new and inventive. Does this mean that a competitor can simply copy your product and put it on the market in the Netherlands if protection is not available or after the expiry of the term of protection? The answer to this question is “not necessarily”, and this is due to the principle of slavish imitation. Parentheses or slavish imitation Slavish imitation is best explained as the unauthorized and useless (“too servile”) imitation of someone else`s product or service. This is not intellectual property (IP) law, but an ordinary illegal act under the Dutch Civil Code.
Among lawyers, we speak of “residual right” with respect to intellectual property laws. It sounds small, but the doctrine is successfully applied in practice. Competition should not be too similar. It sounds like a “grey area”, but the reality is not black and white. Slavish imitation often refers to aspects of the appearance of an offered product and in particular at the time of perception by the buyer, while no intellectual property law applies. Whether a likelihood of confusion can be established depends on the similarity of the products concerned. In addition, your product must be actively protected. The proper position of your product may decrease and even disappear if similar products appear on the relevant market. This requires active protection of products against infringing and counterfeiting.
In addition to pure innovation, many companies rely on existing product shapes and product names. It`s not just about whether things can be done differently (almost always possible), but whether things need to be done differently (and therefore shouldn`t be too close to the other party). The imitator is obliged to do everything reasonably possible and necessary, without compromising the reliability and usefulness of his product, in order to avoid confusion. If the imitator does not comply with this requirement, for example by choosing a certain shape when he could have opted for a different form, this may be illegal. Slavish imitation is a form of illegal act and is essentially based on the idea that we do not want someone to swim someone else`s distinctive product by making a virtually identical copy of that product. They should make their own product. Under certain circumstances, you can prohibit the counterfeiting of your product if the manufacturer of the counterfeit could have made different design decisions without affecting the (technical) operation or reliability of the product. This means that the various features, which are only relevant to the design of the product and for which there are possible alternatives, cannot simply be copied.
In fact, “slavish imitation” protects the appearance of products rather than their technical functioning. The prerequisite is that your product has its own position in the market and that the generic product is so similar that it could lead to confusion in the market as to its origin. Slavish imitation therefore offers protection against unnecessary confusion. It is not only about design features, but also about copying a (large) number of technical features of a product, provided that the following conditions are met: There are many ways to protect your intellectual property.